Citation NR: 9608566
Decision Date: 03/29/96 Archive Date: 04/11/96
DOCKET NO. 93-05 934 ) DATE
)
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On appeal from the
Department of Veterans Affairs Regional Office in Louisville,
Kentucky
THE ISSUES
1. Entitlement to service connection for ear disease.
2. Entitlement to an increased disability evaluation for
traumatic arthritis with torn medial meniscus, left knee,
currently evaluated as 10 percent disabling.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
Brynn Krista Bloomgren, Associate Counsel
INTRODUCTION
The appellant had active service from July 1982 to April
1992.
This matter came before the Board of Veterans’ Appeals
(Board) on appeal from an August 1992 rating decision of the
Louisville, Kentucky, Regional Office (RO) of the Department
of Veterans Affairs (VA), which denied entitlement to service
connection for ear disease, and granted entitlement to
service connection for degenerative arthritis left knee,
trauma by history, rated 10 percent disabling. The decision
was affirmed in December 1992. The Board remanded the claim
for further development in November 1994.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran contends that an increased disability evaluation
is warranted for traumatic arthritis with torn meniscus of
the left knee. He argues that the experiences severe pain
and swelling of the left knee. He states that he has lost
time from work, and that the disability impairs his ability
to perform his job.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1995), has reviewed and considered
all of the evidence and material of record in the veteran’s
claims file. Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that the preponderance of the
evidence is against the claim for an increased disability
evaluation for traumatic arthritis with torn meniscus of the
left knee.
FINDINGS OF FACT
1. All relevant evidence necessary for an equitable
disposition of the appellant’s claim for an increased rating
has been obtained by the agency of original jurisdiction.
2. Traumatic arthritis of the left knee with torn meniscus
is manifested by minimal functional limitation and quadriceps
atrophy. It is not manifested by flexion limited to 30
degrees, or by extension limited to 15 degrees. The overall
disability picture is no more than slight.
3. This case does not present an exceptional or unusual
disability picture with such related factors as marked
interference with employment or frequent periods of
hospitalization so as to render impractical the regular
schedular standards.
CONCLUSION OF LAW
The criteria for a 20 percent disability evaluation for
traumatic arthritis with torn medial meniscus, left knee, are
not met. 38 U.S.C.A. §§ 1155, 5107 (West 199); 38 C.F.R.
§ 3.321(b)(1), Part 4, §§ 4.1, 4.2, 4.7, 4.10, 4.20, 4.40,
4.59, 4.71a, Diagnostic Codes 5257, 5260, 5261 (1995).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The Board notes that the veteran's claim for entitlement to
an increased disability evaluation for his service-connected
left knee disorder is well-grounded within the meaning of
38 U.S.C.A. § 5107 (West 1991). A well-grounded claim is a
plausible claim, one which is meritorious on its own or
capable of substantiation. Murphy v. Derwinski, 1 Vet.App.
78, 81 (1990). We are satisfied that all relevant facts have
been properly developed and the duty to assist has been met.
38 U.S.C.A. § 5107 (West 1991).
Disability evaluations are determined by the application of
the schedule of ratings which is based on the average
impairment of earning capacity. 38 U.S.C.A. § 1155 (West
1991); 38 C.F.R. Part 4 (1995). Separate diagnostic codes
identify the various disabilities. The regulations provide
that each disability be viewed in relation to its history.
38 C.F.R. Part 4, § 4.1 (1995).
The basis of disability evaluations is the ability of the
body as a whole, or of the psyche, or of a system or organ of
the body to function under the ordinary conditions of daily
life including employment. Evaluations are based upon lack
of usefulness, of the part or system affected, especially in
self-support. 38 C.F.R. Part 4, § 4.10 (1995).
Where there is a question as to which of two evaluations
shall be applied, the higher will be assigned if the
disability picture more nearly approximates the criteria
required for that rating. Otherwise, the lower rating will
be assigned. 38 C.F.R. Part 4, § 4.7 (1995).
When an unlisted condition is encountered, it will be
permissible to rate under a closely related disease or injury
in which not only the functions affected, but the anatomical
localization and symptomatology are closely analogous. 38
C.F.R. Part 4, § 4.20 (1995).
Functional loss may be due to absence or part, or all, of the
necessary bones, joints and muscles, or associated
structures, or to deformity adhesions, defective innervation,
or other pathology, or it may be due to pain, supported by
adequate pathology and evidence by the visible behavior of
the claimant undertaking the motion. Weakness is as
important as limitation of motion, and a part which becomes
painful on use must be regarded as seriously disabled. A
little used part of the musculoskeletal system may be
expected to show evidence of disuse, either through atrophy,
the condition of the skin, absence of normal callosity or the
like. 38 C.F.R. Part 4, § 4.40 (1995).
Painful motion should be considered in the evaluation of the
joints. 38 C.F.R. Part 4, § 4.45 (1995). Section 4.59
provides that painful motion is also a factor to be
considered in the rating of any form of arthritis and that
painful motion with joint or periarticular pathology is
productive of disability. It is the intention of the
regulation to recognize actually painful, unstable or
malaligned joints due to healed injury, as entitled to at
least the minimum compensable rating for the joint. 38
C.F.R. Part 4, § 4.59 (1995).
The service records indicate that the veteran was seen for
left knee complaints in 1987 and 1989. He was treated for
possible meniscus tear in May 1989.
Following service, the veteran was afforded VA examination in
June 1992. He complained of intermittent stiffness of the
left knee. An X-ray revealed marginal osteophytosis in
several areas of the knee. The diagnosis was early
osteoarthritis of the left knee.
A VA hospital report, dated in October 1992, shows that the
veteran underwent left knee arthroscopy for medial meniscus
tear, following a traumatic injury approximately two weeks
earlier. The diagnosis was medial meniscus tear. Subsequent
VA outpatient treatment records show ongoing need for
treatment for the left knee. An undated report, noted that
complaints of increased pain with stairs. There was no
locking or catching, but positive instability. The
assessment was left patellofemoral [illegible]. In April
1995, the veteran complained of left knee popping and
stiffness. He said he was sore behind the knee for the past
three or four weeks, and that the knee was getting more
painful. Objective examination showed mild swelling with no
redness, pain, or tenderness of the medial knee. There was
positive pain on motion. Drawer test was negative. The
assessment was left knee pain medial joint line, question
medial collateral ligament strain, tight hamstrings. The
records show that the veteran was prescribed a knee sleeve
for use when active.
A VA neurologic examination, performed in May 1995
demonstrated no pain with mobilization of the left knee.
There was full range of motion in all articulations. Gait
was within normal limits. The impression was history of
traumatic arthritis secondary to left knee trauma, currently
asymptomatic, no functional limitation.
A VA orthopedic examination was performed in June 1995. The
veteran indicated that he had done much better with the knee
sleeve. He said he had occasional pain on standing for long
periods of time, but things were substantially better than
they were in April 1995. He said there was always tenderness
on pressure at the medial aspect of the joint line on the
left, and sometimes his knee popped. There was no swelling,
deformity, subluxation, or lateral instability noted. The
left knee had 110 degrees of flexion with some pain when
flexion was performed against resistance. The veteran was
able to straighten out both legs with full extension and up
to perhaps 5 to 10 degrees of hyperextension with no pain
when this was carried out against my resistance. There was
minimal atrophy of the quadriceps muscle on the left. The
veteran was able to walk without any difficulty and his gait
appeared normal. He was able to climb up and down a flight
of 20 or 25 stairs without any symptoms or difficulty. The
diagnosis was traumatic arthritis, left knee, with limitation
of function and some quadriceps atrophy.
Traumatic arthritis established by x-ray findings is rated on
the basis of limitation of motion under the diagnostic codes
for the specific joint or joints involved. When, however, the
limitation of motion of the specific joint or joints is
noncompensable, a rating of 10 percent is for application for
each such major joint or group of minor joints affected by
limitation of motion, to be combined, not added under
Diagnostic Code 5003. Limitation of motion must be
objectively confirmed by findings such as swelling, muscle
spasm, or satisfactory evidence of painful motion. 38 C.F.R.
Part 4, § 4.71a, Diagnostic Code 5003, 5010 (1995).
Limitation of flexion of the leg to 45 degrees warrants a
10 percent evaluation and to 30 degrees warrants a 20 percent
evaluation. Limitation of extension of the leg to 10 degrees
warrants a 10 percent evaluation and to 15 degrees warrants a
20 percent evaluation. 38 C.F.R. Part 4, § 4.71a, Diagnostic
Codes 5260, 5261 (1995).
According to the recent examination findings, the right knee
had 130 degrees flexion and no pain when the knee was flexed
against any resistance. The left knee had 110 degrees of
flexion with some pain when flexion was performed against
resistance. There was full extension, bilaterally.
Accordingly, an increased disability evaluation is not
warranted on the basis of limitation of motion of the left
leg.
The service-connected left knee disorder may also be rated
under the criteria for other knee impairment. Slight
impairment of the knee resulting from recurrent subluxation
or lateral instability warrants a 10 percent evaluation.
Moderate impairment resulting from recurrent subluxation or
lateral instability warrants in a 20 percent evaluation. 38
C.F.R. Part 4, § 4.71a, Diagnostic Code 5257 (1995).
The VA examination report noted some improvement since the
outpatient treatment received in April 1995. There was no
subluxation or instability noted. There was noted limitation
of function and some quadriceps atrophy. This is
contemplated by the 10 percent rating currently in place.
There was no demonstrable pain on motion during testing.
Based on the evidence, the overall disability picture does
not more closely approximates the criteria for a 20 percent
disability. 38 U.S.C.A. §§ 1155, 5107 (West 199); 38 C.F.R.
§ 3.321(b)(1), Part 4, §§ 4.1, 4.2, 4.7, 4.10, 4.20, 4.40,
4.59, 4.71a, Diagnostic Codes 5257, 5260, 5261 (1995).
At this time, the evidence supporting the claim consists of
the veteran’s own statements. The Board concludes that the
records established by competent, trained professionals,
including the impression of no impairment, are more probative
of the degree of the impairment than the veteran’s claim.
The preponderance of the evidence is against the claim and
there is no doubt to be resolved.
In reaching this determination, consideration has also been
given to the potential application of the various provisions
of 38 C.F.R. Parts 3 and 4, whether they were raised by the
appellant or not as required by Schafrath v. Derwinski, 1
Vet.App. 589 (1991). The Board considered whether an
extraschedular evaluation is warranted. However, the
evidence does not suggest that the veteran's disability is so
unusual as to render impractical the application of the
regular schedular standard, such as would be demonstrated by
marked absence from employment or frequent periods of
hospitalization necessitated by the disability at issue.
38 C.F.R. § 3.321(b)(1) (1995).
ORDER
Entitlement to an increased disability evaluation for
traumatic arthritis with torn medial meniscus, left knee,
rated 10 percent disabling, is denied.
REMAND
Service medical records show that the veteran was seen for
earache in December 1985. The assessment was otitis externa
right ear. In March 1986, the right ear canal was red
infection with drainage. The assessment was otitis externa.
A follow-up examination reflected a diagnosis of right otitis
externa, suppurative. In February 1992, examination of the
ears showed that they were partially blocked. The tympanic
membranes appeared intact with no infection noted. The
assessment was upper respiratory infection. According to a
separation report, dated in April 1992, the veteran indicated
that he had a history of ear, nose and throat trouble, but
examination showed that the ears were normal.
A VA medical certificate, dated in June 1993, noted left
otitis media. The right tympanic membrane appeared gray.
Both canals were red. The impression was history of cerumen
impacted and left otitis media. According to a consultation
report, dated in July 1993, the veteran was seen for left
otitis media. The tympanic membrane of the left ear was
erythematous and tender. The assessment was recurrent otitis
externa. Subsequent treatment reports were negative for ear
disorders.
The records obtained since the prior remand show evidence of
active ear disease since the VA examination in 1992. It
remains unclear whether there is chronic ear disease
involving both the right and left ear, and whether the
condition is related to the ear problems noted in service.
The veteran was afforded VA examination in June 1995.
However, this did not include complete examination of both
ears. The Court has stated that when the Board believes that
the medical evidence of record is insufficient it may
supplement the record by ordering a medical examination.
Colvin v. Derwinski, 1 Vet.App. 171 (1991).
In light of the foregoing, this case is REMANDED for the
following development:
1. The RO should afford the a VA
examination of his ears. The examiner
should review the pertinent medical
history prior to the examination,
including the veteran’s service medical
records. The examiner should state
whether the veteran has chronic ear
disease of the right or left ear, and
provide an opinion as to whether any
currently ear disease is etiologically
related to the ear problems noted during
military service. The pertinent medical
history and a copy of this REMAND should
be made available to the examiner prior
to the examination.
After the requested development has been completed to the
extent possible, the RO should again review the record. If
the benefit sought on appeal is not granted, the RO should
furnish the veteran and his representative a supplemental
statement of the case, including a summary of the relevant
evidence, citation to the applicable laws and regulations,
and reasons and bases for the decision, and be afforded the
opportunity to respond before the record is returned to the
Board for further appellate review.
The purpose of this remand is to obtain additional
development and the Board does not intimate any opinion as to
the merits of the case. No further action is required of the
veteran until he is notified.
H. N. SCHWARTZ
Member, Board of Veterans’ Appeals
The Board of Veterans’ Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, 741
(1994), permits a proceeding instituted before the Board to
be assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
Supp. 1995), a decision of the Board of Veterans’ Appeals
granting less than the complete benefit, or benefits, sought
on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans’ Judicial Review Act, Pub.
L. No. 100-687, § 402 (1988). The date that appears on the
face of this decision constitutes the date of mailing and the
copy of this decision that you have received is your notice
of the action taken on your appeal by the Board of Veterans’
Appeals. Appellate rights do not attach to those issues
addressed in the remand portion of the Board’s decision,
because a remand is in the nature of a preliminary order and
does not constitute a decision of the Board on the merits of
your appeal. 38 C.F.R. § 20.1100(b) (1995).
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